Possession of Land in UK Law

If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (" animus possidendi"). A person claiming to have "dispossessed" another must similarly fulfil both these requirements.

From 1833 onwards, therefore, old notions of adverse possession, disseisin or ouster from possession should not have formed part of judicial decisions. Para 8(1) of Schedule 1 to the 1980 Act defines what is meant by adverse possession in that paragraph as being the case where land is in the possession of a person in whose favour time "can run". It is directed not to the nature of the possession but to the capacity of the squatter.

There will be a "dispossession" of the paper owner in any case where (there being no discontinuance of possession by the paper owner) a squatter assumes possession in the ordinary sense of the word. Except in the case of joint possessors, possession is single and exclusive. Therefore if the squatter is in possession the paper owner cannot be.

What is crucial is to understand that, without the requisite intention, in law there can be no possession. Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. It is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession.

The general rule, which English law has derived from the Roman law, is that only one person can be in possession at any one time. The same rule applies in cases where two or more persons are entitled to the enjoyment of property simultaneously. Once possession has begun, as in the case of the owner of land with a paper title who has entered into occupation of it, his possession is presumed to continue.

If the occupier of land suffers personal injury as a result of inhaling the smoke, he may have a cause of action in negligence. But he does not have a cause of action in nuisance for his personal injury, nor for interference with his personal enjoyment. It follows that the quantum of damages in private nuisance does not depend on the number of those enjoying the land in question.

It is not in doubt that under the 1939 Act as under the previous law, the person claiming by possession must show either (1) discontinuance by the paper owner followed by possession or (2) dispossession (or as it is sometimes called 'ouster') of the paper owner, Clearly, possession concurrent with the paper owner is insufficient.